Ea Lee v Information Commissioner

1. The Applicant made an application to progress an investigation under section 166 of the Data Protection Act 2018 (“DPA 2018”) using the GRC3 form on 23 September 2025.

2. The Applicant did not include a copy of the complaint nor provide any details of the date on which such complaint was made, but explained that this arose out of a previous complaint, in respect of which the Information Commissioner (“IC”) had issued a decision notice (the “Decision Notice”) on 7 May 2025. The Decision Notice had required the public authority, NHS England, to issue a fresh response, which it duly did on 4 June 2025. The Applicant subsequently appealed the Decision Notice to this Tribunal (reference FT/EA/2025/0212) because they said that the Decision Notice should not only have specified that NHS England could not rely on section 14(1) of the Freedom of Information Act 2000 (“FOIA”) but also should have stipulated that the response must not rely on the assertion that the requested information was not held under section 1(1) of FOIA.

3. I struck out appeal FT/EA/2025/0212 on 11 August 2025, in summary for the following reasons: a. Section 1(1) was not part of the complaint which gave rise to the Decision Notice. It was not open to the IC in the Decision Notice to stipulate that the public authority could not rely on it as a result. b. The IC had not issued a Decision Notice which related to NHS England’s response to the Decision Notice dated 4 June 2025. Accordingly the Tribunal has no jurisdiction to hear the appeal c. The Response to the Decision Notice triggered a fresh right of appeal under FOIA section 50. To appeal the Decision Notice Response to the Tribunal, the Appellant would need to refer the complaint to the IC, sought internal review and then appeal.

4. By Directions dated 9 October 2025, Registrar Bamawo noted that the Applicant had not provided a copy of the complaint, but that it appeared to relate to an information request under FOIA, in respect of which the Tribunal cannot order the IC to progress a complaint. The Registrar did not explain this in the order, but section 165 of the DPA 2018 provides that the section 166 power is only available in relation to infringements of part 3 and 4 of the DPA 2018, in other words to data processing complaints.

5. The Registrar directed that, pursuant to rule 8(4) the Applicant should make submissions by 20 October 2025 as to why the matter should not be struck out for want of jurisdiction because no section 50 FOIA Decision Notice has been issued and the Tribunal has no power to make an order under the DPA 2018. The Applicant was directed to note that failure to comply with this direction could lead to the Tribunal striking out the appeal for failure to comply without further direction.

6. No further correspondence or submissions have been received by the Tribunal from the Applicant. Accordingly, there are grounds to strike out the Application for non-compliance with a direction of the Tribunal.